EXHIBIT 2.3
REGISTRATION AGREEMENT
THIS REGISTRATION AGREEMENT (the "AGREEMENT") is made and entered into
this ___ day of ___________, 199__, between (i) AMCE Entertainment Inc., a
Delaware corporation (the "COMPANY"), (ii) Xxxxxxx X. Xxxxxxx, individually and
as trustee of the 1992 Xxxxxxx, Inc. Voting Trust dated December 12, 1992 (the
"1992 TRUST"), and the Trust created pursuant to the Xxxxxxx X. Xxxxxxx Trust
Agreement dated August 14, 1989 (the "1989 TRUST"), Xxxxx X. Xxxxxxxxx, Xxxxxx
X. Xxxxxxx, Xxxxxx X. Xxxxxxx, Xxxxxx X. Xxxxxx, Xxxxx X. Xxxxxxx, Xxxxx X.
Xxxxxxx (the "FAMILY STOCKHOLDERS") and each Permitted Assignee (as herein
defined) of such Family Stockholder listed on Exhibit A to this Agreement from
time to time (each such Family Stockholder and Permitted Assignee a
"STOCKHOLDER" and collectively "STOCKHOLDERS") and (iii) solely for purposes of
Section 4 hereof, Delta Properties, Inc., a Missouri corporation.
The Company has agreed to provide to the Stockholders the registration
rights ("REGISTRATION RIGHTS") set forth in this Agreement.
In consideration of the foregoing, the parties hereto agree as
follows:
Section 1. CERTAIN DEFINITIONS.
For purposes of this Agreement, the following terms shall have the
following respective meanings:
"ADJUSTED BASIS" shall mean, as of a specified date with respect to a
specified number of shares of Common Stock or Class B Stock, the number of
shares of Common Stock and Class B Stock that a record holder of such specified
number of shares on [insert date of Merger Agreement] would hold on such
specified date, after giving effect to all stock dividends and splits and all
subdivisions, combinations or reclassifications of such class of securities the
record date of which occurs between [insert date of Merger Agreement] and such
specified date.
"CHARITABLE ASSIGNEE" of a Stockholder shall mean any charitable
organization, including charitable remainder and charitable lead trusts, a
transfer of property to which by such Stockholder would qualify, at least in
part, for an income, gift or estate tax charitable deduction under the Internal
Revenue Code of 1986, as amended.
"CLASS B STOCK" shall mean the Class B Stock, par value 66 2/3CENTS
per share, of the Company.
"COMMISSION" shall mean the Securities and Exchange Commission, or any
other federal agency at the time administering the Exchange Act or the
Securities Act, whichever is the relevant statute for the particular purpose.
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"COMMON STOCK" shall mean the Common Stock, par value 66 2/3 CENTS per
share, of the Company.
"DI" shall mean Xxxxxxx, Inc., a Missouri corporation, which is to be
merged into the Company in the Merger.
"EFFECTIVENESS PERIOD" shall have the meaning set forth in
Section 2(a).
"EFFECTIVE DATE" shall mean the date on which the Commission declares
a Registration effective or on which a Registration otherwise becomes effective.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, or any
successor thereto, as the same shall be amended from time to time.
The term "HOLDER" shall mean a Stockholder and such of its respective
Permitted Assignees who acquire Registrable Securities, directly or indirectly,
from such Stockholder or from any Permitted Assignee of such Stockholder.
"MERGER" shall mean the merger of DI with and into the Company
pursuant to the Agreement and Plan of Merger and Reorganization dated as of
_________, 1997 between the Company and DI (the "MERGER AGREEMENT").
"PERMITTED ASSIGNEES" of a Stockholder shall mean any of the following
persons and entities to which Registrable Securities are transferred by such
Stockholder by gift prior to the date the Registration Statement is first filed
with the Commission that at the time of such transfer agree by instrument in
form and substance reasonably satisfactory to the Company to be bound by the
provisions of (x) this Agreement and (y) the Stock Agreement, in each case as a
"Stockholder": (i) another Stockholder, (ii) the spouse of a Stockholder,
(iii) a lineal descendant of a Stockholder, including an adopted child, and any
spouse of a lineal descendant (each, a "FAMILY MEMBER"), (iv) a trust
established by one or more Stockholders or Family Members of one or more
Stockholders principally for the benefit of one or more Stockholders or Family
Members of Stockholders and/or one or more Charitable Assignees, (v) the estate
of such Stockholder and (vi) any Charitable Assignee. Upon the transfer of
shares of Registrable Securities by a Stockholder to a Permitted Assignee of
such Stockholder as provided herein prior to the date the Registration Statement
is first filed with the Commission, Exhibit A hereto will be deemed to be
amended without further action of the parties hereto (x) to reduce the number of
shares of Registrable Securities set forth next to such Stockholder's name on
Exhibit A by the number of shares so transferred that will be subject to this
Agreement, (y) if such Permitted Assignee's name is not listed on Exhibit A, to
add the name of such Permitted Assignee to Exhibit A as a Stockholder, and
(z) to set forth the number of shares of Registrable Securities so transferred
that will be subject to this Agreement (or to increase the number of shares so
listed by the number of shares so transferred that will be subject to this
Agreement) next to such Permitted Assignee's name on Exhibit A. Notwithstanding
any provision of this Agreement to the contrary, a Family Stockholder may
transfer to or for the benefit of one or more Charitable Assignees in the
aggregate up to five percent (5%) of the number of shares of Common Stock or
Class B Stock received by such Family Stockholder in the Merger (or shares of
Common Stock
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issued upon conversion of such Class B Stock), free and clear of all the
provisions of this Agreement, and such Charitable Assignees may elect after the
date of transfer (but otherwise at a time consistent with the provisions of this
Agreement) to participate in the Registration (in which case such Charitable
Assignee shall be deemed to be a Permitted Assignee (except that such Charitable
Assignee need not agree to be bound by the provisions of the Stock Agreement));
provided that if any such Charitable Assignee elects to participate in the
Registration, (i) such Charitable Assignee must then agree by instrument in form
and substance satisfactory to the Company to be bound by this Agreement and (ii)
the provisions of the preceding sentence shall apply.
The term "PERSON" shall mean a corporation, association, partnership
(general, limited or limited liability), organization, business, limited
liability company, individual, government or political subdivision thereof or
governmental agency.
"PROSPECTUS" shall mean the prospectus included in a Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
Registration Statement in reliance upon Rule 430A promulgated under the
Securities Act), as amended or supplemented by any prospectus supplement, with
respect to the terms of the offering of any portion of the Registrable
Securities covered by such Registration Statement, and all other amendments and
supplements to the prospectus, including post-effective amendments, and all
documents and materials incorporated by reference in such prospectus.
"REGISTRABLE SECURITIES" shall mean the shares of Common Stock (on an
Adjusted Basis), listed on Exhibit A hereto and acquired by Stockholders
pursuant to the Merger or upon conversion of shares of the Class B Stock
acquired by Stockholders pursuant to the Merger.
"REGISTRATION" shall have the meaning set forth in Section 2(a).
"REGISTRATION EXPENSES" shall have the meaning set forth in Section 4
hereof.
"REGISTRATION STATEMENT" shall mean a registration statement of the
Company that covers any of the Registrable Securities pursuant to the provisions
of this Agreement, including the Prospectus, amendments and supplements to such
registration statement, including post-effective amendments, all exhibits, and
all material incorporated by reference in such registration statement.
"SECURITIES ACT" shall mean the Securities Act of 1933, or any
successor thereto, as the same shall be amended from time to time.
"STOCK AGREEMENT" shall have the meaning set forth in the Merger
Agreement.
The term "UNDERWRITTEN OFFERING" shall mean a distribution of
securities subject to registration under the Securities Act in which securities
are sold to an underwriter for reoffering to the public.
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Section 2. REGISTRATION.
(a) REGISTRATION. Subject to the consummation of the Merger and the
effectiveness of the Registration, each Stockholder agrees to participate in a
registered underwritten secondary offering of at least 3,000,000 shares (on an
Adjusted Basis) in the aggregate of Registrable Securities on the terms and
conditions set forth in this Agreement and to sell such number of shares of
Common Stock in such underwritten offering as is set forth next to each
Stockholder's name on Exhibit A, subject to increase or reduction as set forth
below. The Stockholders agree that the underwriters for the Registration will
use their reasonable efforts in light of market conditions to sell at least 70%
of the shares sold in such secondary offering to institutional (as opposed to
retail) investors. The Company agrees (subject to the performance by the
Stockholders of their obligations hereunder) to use its reasonable efforts to
file a Registration Statement on a form selected by the Company to register
under the Securities Act for sale to the public in an underwritten offering the
number of shares of Registrable Securities owned by each Stockholder set forth
next to such Stockholder's name on Exhibit A hereto (on an Adjusted Basis) from
time to time (the "REGISTRATION") or such smaller or greater number of shares of
Registrable Securities as shall be agreed by the Company and such Stockholder in
writing, PROVIDED that (x) the number of shares of Registrable Securities of a
Stockholder set forth on Exhibit A may be decreased without the consent of the
Company by written notice to the Company reasonably satisfactory to the Company
from such Stockholder if (1) the number of shares of Registrable Securities of
another Stockholder set forth on Exhibit A is at the same time increased by a
like number of shares or (2) such shares are transferred to a Permitted Assignee
of such Stockholder and such Permitted Assignee becomes a party hereto as a
Stockholder and such shares so transferred are set forth next to such Permitted
Assignee's name on Exhibit A hereto, (y) the number of shares of Registrable
Securities of a Stockholder set forth on Exhibit A may be decreased without the
consent of the Company by written notice to the Company reasonably satisfactory
to the Company from such Stockholder so long as after giving effect thereto the
Registration covers at least 3,000,000 shares of Common Stock (on an Adjusted
Basis) and (z) the number of shares of Registrable Securities of a Family
Stockholder set forth in Exhibit A may be increased without the consent of the
Company by written notice to the Company from such Family Stockholder so long as
after giving effect thereto the Registration covers no more than 5,000,000
shares of Common Stock (on an Adjusted Basis). Should more than one Family
Stockholder seek to increase the number of Registrable Securities as permitted
above and as a result the number of shares sought to be included in the
Registration exceeds 5,000,000 shares (on an Adjusted Basis), the number of
shares, if any, that Xxxxxxx X. Xxxxxxx, the 1992 Trust and the 1989 Trust have
sought to include in the Registration above the number listed on Exhibit A (on
an Adjusted Basis) shall be reduced to the extent necessary to reduce the
aggregate number of shares sought to be included in the Registration to
5,000,000 shares (on an Adjusted Basis), and if such number of shares still
exceeds 5,000,000, the Company shall allocate the increased number of shares to
be included in the Registration among such Family Stockholders (other than
Xxxxxxx X. Xxxxxxx, the 1992 Trust and the 1989 Trust) seeking an increase on a
pro rata basis or in such other manner as such Family Stockholders may agree.
In the event of any increase or decrease in the number of Registrable Securities
of a Stockholder as set forth above, Exhibit A hereto shall be deemed amended to
increase or decrease, accordingly, the number of shares of Registrable
Securities set forth next to such Stockholder's name. The Company shall
(subject to
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the performance by the Stockholders of their obligations hereunder) use its
reasonable efforts to cause the Registration to be declared effective under the
Securities Act as promptly as practicable on or after the date that is six
months and one day from the date of the Merger and to keep the Registration
effective under the Securities Act for a period ending on the date that is six
months from such date (provided that such six month period shall be extended by
the length of any Postponement Period (as defined below)) or such shorter period
ending when all Registrable Securities covered by the Registration have been
sold (the "EFFECTIVENESS PERIOD").
(b) SUPPLEMENTS AND AMENDMENTS. The Company shall supplement and
amend the Registration Statement, prior to the Effective Date and during the
Effectiveness Period, if (i) required by the rules, regulations or instructions
applicable to the registration form used for such Registration, (ii) otherwise
required by the Securities Act or (iii) reasonably requested by the holders of a
majority in aggregate principal amount of the Registrable Securities covered by
such Registration Statement or by any underwriter of such Registrable
Securities.
(c) SELECTION OF UNDERWRITERS. The managing underwriters for the
Registration shall be selected jointly by the Company and the Family
Stockholders (other than the 1992 Trust and the 1989 Trust) acting by majority
vote (for which purpose each such Family Stockholder shall have one vote).
(d) CONDITIONS TO THE OBLIGATIONS OF COMPANY. The Company shall be
entitled to postpone (or if already filed may withdraw such Registration
Statement), for an aggregate of up to 180 days (together with any period
described in the last sentence of Section 3(b) hereof, a "POSTPONEMENT PERIOD"),
the filing of the Registration Statement otherwise required to be prepared and
filed by it pursuant hereto if, as a result of the Registration the Company
would be required to prepare any financial statements other than those it
customarily prepares or the Company determines in its reasonable business
judgment that such registration and offering would interfere with any material
financing, acquisition, corporate reorganization or other material corporate
transaction or development involving the Company and gives the Stockholders
written notice of such determination.
Section 3. REGISTRATION PROCEDURES.
(a) In connection with the Company's obligations with respect to the
Registration, the Company shall (subject to the performance by the Stockholders
of their obligations hereunder):
(i) prepare and file with the Commission a Registration
Statement which shall permit the disposition of the Registrable Securities,
in an underwritten offering, and use its reasonable efforts to cause such
Registration Statement to become effective as provided in this Agreement;
PROVIDED, HOWEVER, before filing the Registration Statement or Prospectus
or any amendments or supplements thereto (including documents that would be
incorporated therein by reference after the initial filing of the
Registration Statement), the Company shall afford the Counsel (as defined
below) and the managing underwriters, an opportunity to review copies of
all such documents proposed to be filed; PROVIDED, FURTHER, that the
Company shall not file any Registration Statement
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or related Prospectus or any amendments or supplements thereto (including
such documents incorporated by reference) if such counsel for all such
holders, or the managing underwriters shall reasonably object, in writing,
on a timely basis (PROVIDED that any such objecting party and the Company
use their best efforts promptly to resolve such party's objections on a
basis reasonably satisfactory to such party and the Company which will
permit such filing);
(ii) prepare and file with the Commission such amendments,
post-effective amendments and supplements to such Registration Statement
and the Prospectus included therein as may be necessary to effect and
maintain the effectiveness of such Registration Statement for the
applicable period specified herein and furnish to the Stockholders copies
of any such supplement or amendment prior to its being used or filed with
the Commission;
(iii) for a reasonable period prior to the filing of such
Registration Statement, and throughout the Effectiveness Period, make
available for inspection by the Counsel and the counsel for the managing
underwriters such financial and other information and books and records of
the Company, and cause the officers, employees, counsel and independent
certified public accountants of the Company to respond to such inquiries,
as shall be reasonably necessary, in the judgment of the respective counsel
referred to in such Section, to conduct a reasonable investigation within
the meaning of Section 11 of the Securities Act; provided, however, that
each such party shall be required to maintain in confidence and not to
disclose to any other person any information or records reasonably
designated by the Company in writing as being confidential, until such time
as (A) such information becomes a matter of public record (whether by
virtue of its inclusion in such Registration Statement or otherwise), or
(B) such person shall be required so to disclose such information pursuant
to a subpoena or order of any court or other governmental agency or body
having jurisdiction over the matter (subject to the requirements of such
order, and only after such person shall have given the Company prompt
written notice of such requirement), or (C) such information is required to
be set forth in such Registration Statement or the Prospectus included
therein or in an amendment to such Registration Statement or an amendment
or supplement to such Prospectus in order that such Registration Statement,
Prospectus, amendment or supplement, as the case may be, does not contain
an untrue statement of a material fact or omit to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then existing;
(iv) notify the Stockholders and the managing underwriters
thereof and, if requested by any such person, confirm such advice in
writing, (A) when such Registration Statement or the Prospectus included
therein or any Prospectus amendment or supplement or post-effective
amendment has been filed, and, with respect to such Registration Statement
or any post-effective amendment, when the same has become effective, (B) of
any comments by the Commission and by the blue sky or securities
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commissioner or regulator of any state with respect thereto or any request
by the Commission for amendments or supplements to such Registration
Statement or Prospectus or for additional information, (C) of the issuance
by the Commission of any stop order suspending the effectiveness of such
Registration Statement or the initiation or threatening of any proceedings
for that purpose, (D) if at any time the representations and warranties of
the Company contemplated by Section 3(a)(xi) hereof cease to be true and
correct in all material respects, (E) of the receipt by the Company of any
notification with respect to the suspension of the qualification of the
Registrable Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose, or (F) at any time when a
Prospectus is required to be delivered under the Securities Act, that such
Registration Statement, Prospectus, Prospectus amendment or supplement or
post-effective amendment, or any document incorporated by reference in any
of the foregoing, contains an untrue statement of a material fact or omits
to state any material fact required to be stated therein or necessary to
make the statements therein not misleading in light of the circumstances
then existing;
(v) use its reasonable efforts to obtain the withdrawal of any
order suspending the effectiveness of such Registration Statement or any
post-effective amendment thereto at the earliest practicable date;
(vi) if requested by the managing underwriters or the holders
of a majority of the Registrable Securities covered by the Registration,
incorporate in a Prospectus supplement or post-effective amendment such
information as is required by the applicable rules and regulations of the
Commission and as such managing underwriters or such holders specify should
be included therein relating to the terms of the sale of such Registrable
Securities, including, without limitation, information with respect to the
principal amount of Registrable Securities being sold by such holders or to
any underwriters, the name and description of such holders or underwriter,
the offering price of such Registrable Securities and any discount,
commission or other compensation payable in respect thereof, the purchase
price being paid therefor by such underwriters and with respect to any
other terms of the offering of the Registrable Securities to be sold by
such holders or to such underwriters; and make all required filings of such
Prospectus supplement or post-effective amendment after notification of the
matters to be incorporated in such Prospectus supplement or post-effective
amendment;
(vii) furnish to each Stockholder, each underwriter of holders
of Registrable Securities participating in the Registration thereof and the
Counsel an executed copy of such Registration Statement, each such amendment
or supplement thereto (in each case, upon request, including all exhibits
thereto and documents incorporated by reference therein) and furnish each
such holder and underwriter such number of copies of the Prospectus included
in such Registration Statement (including each preliminary Prospectus and
any summary Prospectus) as such holder or underwriter may reasonably
request; the Company hereby consents to the use of such Prospectus
(including such preliminary and summary Prospectus) and any amendment or
supplement
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thereto by each such holder and underwriter, in each case in the form most
recently provided to such party by the Company, in connection with the
offering and sale of the Registrable Securities covered by the Prospectus
(including such preliminary and summary Prospectus) or any supplement or
amendment thereto;
(viii) use its reasonable efforts to (A) register or qualify the
Registrable Securities to be included in such Registration Statement under
such state securities laws or blue sky laws of such jurisdictions as any
holder of such Registrable Securities and underwriter thereof shall
reasonably request, (B) keep such registrations or qualifications in effect
and comply with such laws so as to permit the continuance of offers, sales
and dealings therein in such jurisdictions during the period such
Registration Statement is required to be kept effective and for so long as
may be necessary to enable any such holder or underwriter to complete its
distribution of Securities pursuant to such Registration Statement as
contemplated hereby and (C) take any and all other actions as may be
reasonably necessary or advisable to enable each such holder and
underwriter to consummate the disposition in such jurisdictions of such
Registrable Securities; PROVIDED, HOWEVER, that the Company shall not be
required for any such purpose to (I) qualify as a foreign corporation in
any jurisdiction where it would not otherwise be required to qualify but
for the requirements of this Section 3(a)(viii), (II) consent to general
service of process in any such jurisdiction, (III) subject itself to
taxation in any such jurisdiction or (IV) make any changes to the Company's
Certificate of Incorporation or By-laws or any agreement between the
Company and its stockholders;
(ix) cooperate with the holders of the Registrable Securities
and the managing underwriters to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to be sold,
which Registrable Securities shall not bear any restrictive legends; and
enable such Registrable Securities to be registered in such names as the
managing underwriters may request at least two business days prior to any
sale of the Registrable Securities to the underwriters;
(x) enter into one or more underwriting agreements, or similar
agreements, as appropriate, with customary provisions applicable to such
agreements, PROVIDED that any such underwriting agreements shall contain an
agreement of the underwriters to indemnify and hold harmless the Company
against any and all losses, claims, damages, and liabilities caused by any
untrue statement or alleged untrue statement of a material fact contained
in any Registration Statement or Prospectus relating to the Registrable
Securities if a copy of the current Prospectus, as amended or supplemented,
was furnished to the underwriters and/or the holders of such Registrable
Securities by the Company but was not provided to a purchaser and such
current Prospectus would have cured the defect giving rise to such loss,
claim, damage or liability, or shall contain a substantially similar
agreement acceptable to the Company; and
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(xi) (A) make such representations and warranties to the
holders of such Registrable Securities and the underwriters thereof in
form, substance and scope as are customarily made in connection with an
offering of equity securities pursuant to a Registration Statement filed
on the form applicable to the Registration; (B) obtain an opinion of counsel
to the Company in customary form and covering such matters, of the type
customarily covered by such an opinion, as the managing underwriters, and
as the holders of at least a majority in aggregate principal amount of the
Registrable Securities covered by the Registration, may reasonably request,
addressed to such holder or holders and the underwriters thereof;
(C) obtain "comfort" letters and updates thereof from the independent
certified public accountants of the Company addressed to the selling
holders of Registrable Securities and the underwriters thereof, such
letters to be in customary form and covering matters of the type
customarily covered in "comfort" letters to underwriters in connection with
underwritten offerings; (D) deliver such documents and certificates,
including officer's certificates, as may be reasonably requested by the
holders of at least a majority in aggregate principal amount of the
Registrable Securities being sold and the managing underwriters thereof to
evidence the accuracy of the representations and warranties made pursuant
to clause (A) above and the compliance with or satisfaction of any
agreements or conditions contained in the underwriting agreement or other
agreement entered into by the Company; and (E) undertake such obligations
relating to expense reimbursement, indemnification and contribution as are
provided in Sections 4 and 5 hereof.
(b) In the event that the Company would be required, pursuant to
Section 3(a)(iv)(F) above, to notify the selling holders of Registrable
Securities, and the managing underwriters thereof, the Company shall prepare and
furnish to each such holder and to each underwriter a reasonable number of
copies of a Prospectus supplemented or amended so that, as thereafter delivered
to purchasers of Registrable Securities, such Prospectus shall not contain an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading in
light of the circumstances then existing. Each holder of Registrable
Securities agrees that upon receipt of any notice from the Company pursuant to
Section 3(a)(iv)(F) hereof, such holder shall forthwith discontinue the
disposition of Registrable Securities pursuant to the Registration Statement
applicable to such Registrable Securities until such holder shall have received
copies of such amended or supplemented Prospectus, and if so directed by the
Company, such holder shall deliver to the Company (at the Company's expense) all
copies, other than permanent file copies, then in such holder's possession of
the Prospectus covering such Registrable Securities at the time of receipt of
such notice. In the event the Company shall give such notice, the Company shall
extend the period during which such Registration Statement shall be maintained
effective as provided in Section 2(a) hereof by the number of days during the
period from and including the date of the giving of such notice to the date when
the Company shall make available to each holder of Registrable Securities
covered by the Registration Statement such amended or supplemented Prospectus.
(c) The Company may require each holder of Registrable Securities as
to which any registration is being effected to furnish to the Company such
information regarding
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such holder (and, in the case of Xxxxxxx X. Xxxxxxx, regarding DI, its
subsidiaries (other than the Company), American Associated Enterprises, a
Missouri limited partnership ("AAE"), the 1989 Trust and the 1992 Trust) and the
method of distribution of such Registrable Securities as the Company may from
time to time reasonably request in writing. Each such holder agrees to notify
the Company as promptly as practicable of any inaccuracy or change in
information previously furnished by such holder to the Company or of the
occurrence of any event in either case as a result of which any Prospectus
relating to such registration contains or would contain an untrue statement of a
material fact regarding such holder or the method of distribution of such
Registrable Securities or omits to state any material fact regarding such holder
or the intended method of distribution of such Registrable Securities required
to be stated therein or necessary to make the statements therein not misleading
in light of the circumstances then existing, and promptly to furnish to the
Company any additional information required to correct and update any previously
furnished information or required so that such Prospectus shall not contain,
with respect to such holder or the method of distribution of such Registrable
Securities, an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading in light of the circumstances then existing.
(d) In connection with the Registration, the Family Stockholders
(other than the 1992 Trust and the 1989 Trust) acting by majority vote (for
which purpose each such Family Stockholder shall have one vote) thereby shall
designate a single counsel (the "COUNSEL"), which shall be reasonably
satisfactory to the Company, to represent the collective interests of all of the
holders of the Registrable Securities covered by the Registration Statement in
the Registration and in their dealings with the Company.
(e) The Company may require each holder of Registrable Securities
covered by a Registration Statement promptly to furnish in writing to the
Company such information regarding such holder (and, in the case of Xxxxxxx X.
Xxxxxxx, regarding DI, its subsidiaries (other than the Company), AAE, the 1989
Trust and the 1992 Trust), the plan of distribution of the Registrable
Securities and other information as the Company may from time to time reasonably
request or as may be legally required in connection with such Registration.
Section 4. REGISTRATION EXPENSES.
Xxxxxxx X. Xxxxxxx, the 1989 Trust, the 1992 Trust and Delta shall
bear and pay (jointly and severally), promptly upon request being made therefor,
all expenses incident to the Company's performance of or compliance with this
Agreement whether or not the public offering contemplated by the Registration is
consummated, including, without limitation, (a) all Commission and any NASD
registration and filing fees and expenses, (b) all fees and expenses in
connection with the qualification of the Registrable Securities for offering and
sale under the state securities and blue sky laws referred to in
Section 3(a)(viii) hereof, including reasonable fees and disbursements of
counsel for the underwriters in connection with such qualifications (in the
event that such counsel performs such functions), (c) all expenses relating to
the preparation, printing, distribution and reproduction of the Registration
Statement required to be filed hereunder, each Prospectus included therein or
prepared for distribution pursuant hereto, each
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amendment or supplement to the foregoing, the certificates representing the
Registrable Securities and all other documents relating hereto, (d) messenger
and delivery expenses, (e) fees and expenses of any escrow agent or custodian,
(f) fees, disbursements and expenses of counsel and independent certified public
accountants of the Company (including the expenses of any opinions or "comfort"
letters required by or incident to such performance and compliance), and fees,
expenses and disbursements of any other persons, including special experts,
retained by the Company in connection with such registration (collectively, the
"Registration Expenses"). Each holder of the Registrable Securities being
registered severally shall also pay (i) its respective pro rata portion of all
underwriting discounts and commissions attributable to the sale of such
Registrable Securities and the reasonable fees and disbursements of the Counsel
and (ii) the entire amount of the fees and expenses of any counsel or other
advisors or experts retained by such holder. The Company shall pay all of its
internal expenses (including, without limitation, all salaries and expenses of
the Company's officers and employees performing legal or accounting duties).
Section 5. INDEMNIFICATION.
(a) INDEMNIFICATION BY THE COMPANY. The Company shall, and it hereby
agrees to, indemnify and hold harmless each holder of Registrable Securities to
be included in the Registration (other than Xxxxxxx X. Xxxxxxx, the 1992 Trust
and the 1989 Trust) from and against any and all losses, claims, damages and
liabilities to which such holder may become subject, under the Securities Act or
otherwise, insofar as such losses, claims, damages and liabilities (or actions
in respect thereof) and related expenses (including without limitation
reasonable attorneys' fees and expenses) ("LOSSES") arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in a Registration Statement under which such Registrable Securities
were registered under the Securities Act, or any preliminary, final or summary
Prospectus contained therein or furnished by the Company to any such holder, or
any amendment or supplement thereto, or arise out of or are based upon any
omission or alleged omission to state therein a material fact necessary to make
the statements therein not misleading; PROVIDED, HOWEVER, that (A) the Company
shall not be obligated to indemnify any such person in any such case to the
extent that any such Losses are caused by an untrue statement or alleged untrue
statement or omission or alleged omission made in such Registration Statement,
or preliminary, final or summary Prospectus, or amendment or supplement based
upon written information furnished to the Company by any holder of Registrable
Securities expressly for use therein, (B) the Company shall not be liable to any
such holder under the indemnity agreement in this subsection (a) with respect to
any preliminary Prospectus to the extent that any such Loss of such holder
results from the fact that such person sold Registrable Securities to a person
as to whom it shall be established that there was not sent or given at or prior
to the written confirmation of such sale, a copy of the Prospectus or of the
Prospectus as then amended or supplemented if the Company has previously
furnished copies thereof in sufficient quantity to such holder or underwriter
and the loss, claim, damage or liability of such holder or underwriter results
from an untrue statement or omission of a material fact contained in the
preliminary Prospectus which was corrected in the Prospectus or in the
Prospectus as amended or supplemented and (C) the Company shall not be obligated
to indemnify any such holder with respect to any sales occurring after the
Company has given
12
notice under Section 3(a)(iv)(F) to such holder and the managing underwriters
and prior to the delivery by the Company of any amended or supplemented
Prospectus.
(b) INDEMNIFICATION BY THE HOLDERS. Each Stockholder shall, and
hereby agrees to, severally and not jointly, indemnify and hold harmless the
Company, and all other holders of Registrable Securities, against any Losses to
which the Company or such other holders of Registrable Securities may become
subject, under the Securities Act or otherwise, to the same extent as the
foregoing indemnity by the Company contained in (a), but only with reference to
information relating to such Stockholder furnished to the Company by such
Stockholder expressly for use in such Registration Statement, or any
preliminary, final or summary Prospectus and, where such Stockholder is Xxxxxxx
X. Xxxxxxx, the 1989 Trust or the 1992 Trust, with reference to information
relating to DI, its subsidiaries (other than the Company), AAE, the 1989 Trust,
the 1992 Trust and Xxxxxxx X. Xxxxxxx; provided, however, that no such holder
shall be required to indemnify under this Section 5(b) for any amounts in excess
of the dollar amount of the proceeds to be received by such holder from the sale
of such holder's Registrable Securities pursuant to such Registration. Such
information shall be deemed to have been so furnished for use therein by a
Stockholder if it relates to such Stockholder (or, in the case of Xxxxxxx X.
Xxxxxxx, the 1989 Trust or the 1992 Trust, where it relates to Xxxxxxx X.
Xxxxxxx, the 1989 Trust, the 1992 Trust, DI, its subsidiaries (other than the
Company) or AAE) and if such Registration Statement was available for review by
such Stockholder (or the legal counsel for such Stockholder) a reasonable time
before being filed and not objected to in writing by such Stockholder prior to
the filing thereof.
(c) NOTICES OF CLAIMS, ETC. Promptly after receipt by an indemnified
party under subsection (a) or (b) above of written notice of the commencement of
any action, such indemnified party shall, if a claim in respect thereof is to be
made against an indemnifying party pursuant to the indemnification provisions of
or contemplated by this Section 5, notify such indemnifying party in writing of
the commencement of such action; but the omission so to notify the indemnifying
party shall relieve it from liability which it may have to any indemnified party
only to the extent the indemnifying party is prejudiced thereby. In case any
such action shall be brought against any indemnified party and it shall notify
an indemnifying party of the commencement thereof, such indemnifying party shall
be entitled to participate therein and, to the extent that it shall wish,
jointly with any other indemnifying party similarly notified, to assume the
defense thereof, including the employment of counsel reasonably satisfactory to
such indemnified party, and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, such
indemnifying party shall pay the fees and disbursements of such counsel and
shall not be liable to such indemnified party for any legal expenses of other
counsel or any other expenses, in each case subsequently incurred by such
indemnified party unless (i) the indemnifying party and the indemnified party
shall have mutually agreed to the retention of such counsel or (ii) the named
parties to any such proceeding (including any impleaded parties) include both
the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the fees and expenses of more than one separate firm
(in addition to any local counsel) for all
13
such indemnified parties. Such firm shall be designated in writing by the
managing underwriter if the named parties to such proceeding include the
managing underwriter and by the Family Stockholders (other than the 1992 Trust
and the 1989 Trust) acting by majority vote (in which each such Family
Stockholder shall have one vote) in the case of parties indemnified pursuant to
paragraph (a) above and by the Company in the case of parties indemnified
pursuant to paragraph (b) above. The indemnifying party shall not be liable for
any settlement of any proceeding effected without its written consent not to be
unreasonably withheld, but if settled with such consent or if there be a final
judgment for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by reason of such
settlement or judgment. No indemnifying party shall, without the prior written
consent of the indemnified party not to be unreasonably withheld, effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
(d) CONTRIBUTION. Each party hereto agrees that, if for any reason
the indemnification provisions contemplated by Section 5(a) or Section 5(b) are
unavailable to or insufficient to hold harmless an indemnified party in respect
of any Losses referred to therein, then each indemnifying party under such
paragraph, in lieu of indemnifying such indemnified party thereunder, shall
contribute to the amount paid or payable by such indemnified party as a result
of such Losses in such proportion as is appropriate to reflect not only the
relative benefits received by the indemnifying party and the indemnified party,
but also the relative fault of the indemnifying party and the indemnified party
in connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), as well as any
other relevant equitable considerations. The relative fault of such
indemnifying party and indemnified party shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact relates to
information supplied by such indemnifying party or by such indemnified party,
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
Notwithstanding the provisions of this Section 5(d), no holder shall
be required to contribute any amount in excess of the amount by which the dollar
amount of the proceeds received by such holder from the sale of any Registrable
Securities (after deducting any fees, discounts and commissions applicable
thereto) exceeds the amount of any damages which such holder has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The holders' obligations in this Section 5(d) to contribute
shall be several in proportion to the principal amount of Registrable Securities
registered or underwritten, as the case may be, by them and not joint.
(e) The obligations of the Company under this Section 5 shall extend,
upon the same terms and conditions, to each officer, director and partner of
each holder and each
14
person, if any, who controls any holder within the meaning of either Section 20
of the Exchange Act or Section 15 of the Securities Act; and the obligations of
the Stockholders contemplated by this Section 5 shall be in addition to any
liability which the Stockholders may otherwise have and shall extend, upon the
same terms and conditions, to each officer and director of the Company
(including any person who, with his consent, is named in any Registration
Statement as about to become a director of the Company) and to each person, if
any, who controls the Company within the meaning of the Securities Act.
(f) The obligations of the Company and each Stockholder under this
Section 5 shall terminate on the Termination Date (as defined below), except
that such obligations shall survive in respect to any claim for
indemnification made under this Section 5 prior to the Termination Date until
such claim for indemnification is finally resolved. As used herein
"Termination Date" means the March 31 that is two years after the March 31
occurring immediately after the date on which the Effective Time (defined in
the Merger Agreement) occurs.
Section 6. UNDERWRITING REQUIREMENTS.
Each holder of Registrable Securities hereby agrees (i) to sell such
holder's Registrable Securities on a basis consistent with this Agreement and as
provided in any underwriting arrangements approved by the persons entitled
hereunder to approve such arrangements and (ii) to complete and execute all
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents reasonably required under the terms of such underwriting
arrangements.
Section 7. MISCELLANEOUS.
(a) SPECIFIC PERFORMANCE. The parties hereto acknowledge that there
may be no adequate remedy at law if any party fails to perform any of its
obligations hereunder and that each party may be irreparably harmed by any such
failure, and accordingly agree that each party, in addition to any other remedy
to which it may be entitled at law or in equity, shall be entitled to compel
specific performance of the obligations of any other party under this Agreement
in accordance with the terms and conditions of this Agreement, in any court of
the United States or any State thereof having jurisdiction.
(b) NOTICES. All notices, requests, claims, demands, waivers and
other communications hereunder shall be in writing and shall be deemed to have
been duly given when delivered by hand, if delivered personally or by courier,
or three days after being deposited in the mail (registered or certified mail,
postage prepaid, return receipt requested) as follows: if to the Company, to it
at 000 Xxxx 00xx Xxxxxx, Xxxxxx Xxxx, Xxxxxxxx 00000, Attention: Corporate
Secretary, if to Delta, to it at 000 Xxxx 00xx Xxxxxx, Xxxxxx Xxxx, Xxxxxxxx
00000, and if to a Stockholder, to such Stockholder at the address set forth on
the signature page hereof next to such Stockholder's signature, provided that
such addresses may be changed by written notice as provided in this paragraph.
Information copies of all notices given to a Stockholder (other than Xxxxxxx X.
Xxxxxxx, the 1992 Trust or the 1989 Trust) or to Delta shall be given to:
15
Xxxxxx X. Xxxxxx, Esq.
Kopple & Xxxxxxx
0000 Xxxxxxx Xxxx Xxxx
Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Xxxxx Xxxxxxxxx, Esq.
Xxxxxx Xxxxxx & Xxxxx
000 Xxxx 00xx Xxxxxx
Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Information copies of all notices given
to Xxxxxxx X. Xxxxxxx, the 1992 Trust,
the 1989 Trust, or Delta should be
given to: Xxxxxxx X. Xxxxxx, Xx., Esq.
Xxxxxxx & Xxxx X.X.
0000 Xxxxx Xxxxxxxxx, 00xx Xxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000-0000
Information copies of all notices given
to the Company should be given to: Xxxxxxx X. Xxxx, Xx., Esq.
Hallmark Cards, Incorporated
0000 XxXxx Xxxxxxxxxx
Xxxxxx Xxxx, XX 00000-0000
The Xxxxxxxxx Xxxx X. Xxxxxxxx
Polsinelli, White, Xxxxxxxx &
Xxxxxxx
Xxxxx 0000, Xxxxx Xxxxxxx
000 Xxxx 00xx Xxxxxx
Xxxxxx Xxxx, XX 00000-0000
(c) THIRD PARTY BENEFICIARIES: HOLDERS ENTITLED AND BOUND. This
agreement shall be binding upon and inure to the benefit of the parties, their
successors, heirs, legatees, devisees and personal and legal representatives,
and any transferee that is a Permitted Assignee. No party may assign its rights
under this Agreement (except to a Permitted Assignee as provided herein) without
the consent of the other parties hereto.
(d) COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(e) SURVIVAL. The respective indemnities, agreements,
representations and warranties and each other provision set forth in this
Agreement or made pursuant hereto shall
16
remain in full force and effect regardless of any investigation (or statement
as to the results thereof) made by or on behalf of any holder of Registrable
Securities, any director, officer or partner of such holder, any agent or
underwriter or any director, officer or partner thereof, or any controlling
person of any of the foregoing, and shall survive the transfer of Registrable
Securities by such holder.
(f) LAW GOVERNING; CONSENT TO JURISDICTION.
(I) This Agreement shall be governed by and construed in
accordance with the laws of the State of Missouri without giving effect to the
conflicts of laws principles thereof.
(II) Each party hereto hereby consents to, and confers exclusive
jurisdiction upon, the courts of the State of Missouri and the Federal courts of
the United States of America located in the City of Kansas City, Missouri, and
appropriate appellate courts therefrom, over any action, suit or proceeding
arising out of or relating to this Agreement. Each party covenants that it will
not commence any action, suit or proceeding arising out of or relating to this
Agreement in any other jurisdiction. Nothing in this paragraph shall affect the
rights of a party to enforce a judgment rendered by the courts referred to in
the first sentence of this paragraph in any other jurisdiction. Each party
hereto hereby waives, and agrees not to assert, as a defense in any such action,
suit or proceeding that it is not subject to such jurisdiction or that such
action, suit or proceeding may not be brought or is not maintainable in said
courts or that this Agreement may not be enforced in or by said courts or that
its property is exempt or immune from execution, that the suit, action or
proceeding is brought in an inconvenient forum, or that the venue of the suit,
action or proceeding is improper. Service of process in any such action, suit
or proceeding may be served on any party anywhere in the world, whether within
or without the State of Missouri by mailing a copy thereof by registered or
certified mail, postage prepaid, to such party at its address provided in
Section 7(b) of this Agreement, provided that service of process may be
accomplished in any other manner permitted by applicable law.
(g) HEADINGS. The descriptive headings of the several Sections and
paragraphs of this Agreement are inserted for convenience only, do not
constitute a part of this Agreement and shall not affect in any way the meaning
or interpretation of this Agreement.
(h) ENTIRE AGREEMENT; AMENDMENTS. This Agreement, the Stock
Agreement, the Indemnification Agreement and the Merger Agreement and, with
respect to the Family Stockholders, that certain Xxxxxxx Family Settlement
Agreement dated as of January 22, 1996 contain the entire understanding of the
parties with respect to the transactions contemplated hereby. This Agreement
supersedes all prior agreements and understandings between the parties with
respect to its subject matter, except that the Xxxxxxx Family Settlement
Agreement shall not be deemed to be amended by this Agreement and shall remain
in full force and effect. This Agreement may be amended and the observance of
any term of this Agreement may be waived (either generally or in a particular
instance and either retroactively or prospectively) only by a written instrument
duly executed by the Company and the Family Stockholders acting by majority vote
(for which purpose each Family Stockholder (other than the 1992 Trust and the
17
1989 Trust) shall have one vote). Each holder of any Registrable Securities at
the time or thereafter outstanding shall be bound by any amendment or waiver
effected pursuant to this Section 7(h), whether or not any notice, writing or
marking indicating such amendment or waiver appears on such Registrable
Securities or is delivered to such holder.
(i) INSPECTION. For so long as this Agreement shall be in effect,
this Agreement and a complete list of the names and addresses of all the holders
of Registrable Securities shall be made available for inspection and copying on
any business day by any holder of Registrable Securities at the offices of the
Company at the address thereof set forth in Section 7(b) above.
(j) SEVERABILITY. In the event that any one or more of the
provisions contained in this Agreement, or the application thereof in any
circumstance, is held invalid, illegal or unenforceable, the validity, legality
and enforceability of any such provision in every other respect and of the
remaining provisions contained herein shall not be affected or impaired thereby.
18
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
AMC ENTERTAINMENT INC.
By:
--------------------------------
Xxxxx X. Xxxxx
President
DELTA PROPERTIES, INC.
By:
--------------------------------
Address:
--------
Suite 1700
Power & Light Building
000 Xxxx 00xx Xxxxxx
P.O. Box 419615
Xxxxxx Xxxx, Xxxxxxxx 00000-0000
----------------------------------
Xxxxxxx X. Xxxxxxx
0000 Xxxxxxx Xxxxx Xxxxx
Xxxx Xxxxxxx, XX 00000
----------------------------------
Xxxxx X. Xxxxxxxxx
0000 Xxxx 00xx Xxxxxx
Xxxxxxx Xxxxxxx, XX 00000
----------------------------------
Xxxxxx X. Xxxxxxx
X.X. Xxx 0000
Xxxxxx Xxxxx Xx, XX 00000
----------------------------------
Xxxxxx X. Xxxxxxx
19
000 Xxxxxxxx Xxxx Xxxx
Xxxxxx, XX 00000
----------------------------------
Xxxxxx X. Xxxxxx
000 X.X. Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
----------------------------------
Xxxxx X. Xxxxxxx
000 Xxxx Xxx Xxxxxx
Xxx Xxxx, XX 00000
----------------------------------
Xxxxx X. Xxxxxxx
Suite 1700
Power & Light Building
000 Xxxx 00xx Xxxxxx
P.O. Box 419615
Xxxxxx Xxxx, Xxxxxxxx 00000-0000
----------------------------------
Xxxxxxx X. Xxxxxxx, as trustee of
the 1992 Trust
Suite 1700
Power & Light Building
000 Xxxx 00xx Xxxxxx
P.O. Box 419615
Xxxxxx Xxxx, Xxxxxxxx 00000-0000
----------------------------------
Xxxxxxx X. Xxxxxxx, as trustee of
the 1989 Trust
EXHIBIT A
Xxxxxxx X. Xxxxxxx *
1989 Trust *
1992 Trust *
---------------
*500,000 shares, collectively
Xxxxx X. Xxxxxxxxx 416,666.67 shares
Xxxxxx X. Xxxxxxx 416,666.67 shares
Xxxxxx X. Xxxxxxx 416,666.67 shares
Xxxxxx X. Xxxxxx 416,666.67 shares
Xxxxx X. Xxxxxxx 416,666.67 shares
Xxxxx X. Xxxxxxx 416,666.67 shares
